TOWER ASSET SUB, INC. v. MCHENRY CTY. CONSERVATION DIST.

The opinion of the court was delivered by: James Moran, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Tower Asset Sub, Inc. (TAS) brought this action against defendant McHenry County Conservation District (MCCD) alleging that defendant breached a license agreement by declining to allow plaintiff to license space on its telecommunications tower. Plaintiff filed a motion for summary judgment as to Count III of the complaint, seeking a declaratory judgment stating that it has the right to license the space. For the following reasons, plaintiffs motion is granted.

BACKGROUND

TAS owns and operates telecommunications towers that house wireless communications equipment.On May 19, 1994 MCCD agreed to allow Smart SMR of Illinois Inc., d/b/a Nettle Communications (Nettle), to construct and maintain such a tower on property that it owns. TAS is the successor-in-interest to Nettle's rights and responsibilities under this licensing agreement.Pursuant to the agreement, plaintiff makes monthly payments to MCCD in exchange of the right to use a 60 — by 60-foot square parcel of land on which it operates and maintains the tower.

The t]owe currently houses the equipment of one wireless service provider but [ Page 2]

to TAS but to another wireless service provider. TAS itself is not engaged in the business of providing wireless service. Moreover, the agreement does not contain any terms that establish such a restriction on plaintiffs use of the tower. Nor does the agreement state that the licensee may not use the tower to house the equipment of multiple providers.

Defendant maintains that, because the agreement in question is a license rather than a lease, plaintiff does not have the full rights that would come with a lease. While it is well settled that leases and licenses are different legal entities, see North Ave. Properties. L.L.C. v. Zoning Bd. of Appeals of City of Chicago, 312 Ill. App.3d 182, 191, 726 N.E.2d 65, 73 (1st DST. 2000), this doles not prevent the plaintiff from obtaining the rights that it bargained for when negotiating the license. Because the agreement's terms clearly allow the plaintiff to use the premises to house telecommunications equipment, the characterization of the agreement is unimportant.

Finally, the parties disagree as to the interpretation of paragraph 14 of the licensing agreement, which allows the licensee to assign its rights in the tower to other parties. The agreement states that the defendant may not unreasonably withhold consent for such assignments. The plaintiff, however, does not seek to assign any of its legal rights in the property to wireless providers, only to use its rights in the tower to house equipment. Such a use does not require defendant's consent and paragraph 14 is not implicated.

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